MCGUINNESS v CORRECTIONS [2023] NZCA 387

MCGUINNESS v CORRECTIONS [2023] NZCA 387 [24 August 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA43/2023[2023] NZCA 387BETWEEN SAMUEL MCGUINNESSAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 18 July 2023Court: Gilbert, Lang and Woolford JJCounsel: J M Hudson for AppellantL P Radich and L A Taula for RespondentJudgment: 24 August 2023 at 11 amJUDGMENT OF THE COURTThe appeal against the imposition of the extended supervision order is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 15 December 2022, Mr Samuel McGuinness was made subject to anextended supervision order (ESO) for a period of three years.1 He now appeals againstthe imposition of the order.1 Department of Corrections v McGuinness [2022] NZDC 24075 [extended supervision order].Factual background[2] Mr McGuinness has been convicted of sexual offending on three separateoccasions. On 21 February 2014, he was sentenced by the New South WalesDistrict Court to imprisonment for nine months with a further nine months on paroleon a charge of aggravated sexual assault against a 14-year-old boy who he hadcontacted on the "Grindr" app. Then on 17 March 2017, he was sentenced by theAdelaide District Court to two years and one month's imprisonment on 42 charges ofcommunicating to make a child amenable to sexual activity and one charge of failingto comply with a sexual offender order's reporting obligations. The complainant wasa 15-year-old boy. The second set of offences had commenced five months after theexpiry of the earlier sentence and consisted of persistent and lengthy grooming over aprolonged period.[3] After his release from prison, Mr McGuinness was deported to New Zealandunder s 501 of the Migration Act 1951 (Cth). On arrival in New Zealand, he wassubject to a returning offender order, which expired on 25 September 2019.[4] Then on 23 March 2021, he was sentenced in the Manukau District Court to18 months' imprisonment with standard and special release conditions for a furthersix months on charges of indecent communication with a young person under the ageof 16 years and meeting a young person following sexual grooming.2 The complainantwas again a 15-year-old boy. This third set of offending had commenced six monthsafter the expiry of the returning offender order.[5] On 22 February 2022, the Chief Executive of the Department of Correctionsapplied for an ESO. On 6 October 2022, Judge R J Earwaker heard the application.He issued a judgment on 15 December 2022 granting the application and orderingMr McGuinness be subject to an ESO for a term of three years from the date of thejudgment.32 R v McGuinness [2021] NZDC 5380.3 Extended supervision order, above n 1.Imposition of an Extended Supervision Order[6] The purpose of an ESO is to protect members of the community from peoplewho pose a real and ongoing risk of committing serious sexual or violent offences.4[7] An offender who has been convicted of a serious violent or sexual offence,which is defined in s 107B of the Parole Act 2002 (the Act), may be the subject of anESO.[8] In relation to sexual offending, in order to impose an ESO, the Court must besatisfied of the following statutory criteria:5(a) the offender has been sentenced to imprisonment for a relevant sexualoffence;6(b) the offender has not ceased to be subject to that sentence or releaseconditions;7(c) the offender has, or has had, a pervasive pattern of various sexual orviolent offending;8 and(d) with regard to the factors set out in s 107IAA(1) of the Act, there is ahigh risk the offender will in future commit a relevant sexual offence.9[9] The court may only determine that an offender poses a high risk of committinga relevant sexual offence if it is satisfied of the matters listed in s 107IAA(1) of the Act.That section provides:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—4 Parole Act 2022, s 107I(1).5 Parole Act, s 107I.6 Sections 107B and 107C(1)(a)(i).7 Section 107C(a)(ii).8 Section 107I(2)(a).9 Section 107I(2)(b).(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; and(b) has a predilection or proclivity for serious sexual offending;and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.[10] In considering whether the mandatory factors are established, the court musthave regard to a health assessors report.10 In addition, the court may receive, and takeinto account any evidence or information it thinks fit for the purpose of determiningthe application whether or not it would be admissible in a court of law.11[11] The court is required to make its determination on an objective basis, with nonotion of a burden of proof imported.12[12] If the statutory criteria are satisfied, the court retains a discretion whether ornot to make an ESO.Grounds of appeal[13] The grounds of appeal are narrow. They are that the Judge was wrong todetermine that there was a high risk that Mr McGuinness would, in the future, commita relevant sexual offence because he erred in concluding, in terms of s 107IAA(1)(c)and (d), that:(a) he had limited self-regulatory capacity;13 and10 Sections 107I(2) and 107F(2A).11 Section 107H(2).12 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009)8 HRNZ 770 at [71]–[75].13 Parole Act, s 107IAA(1)(c).(b) he displayed a lack of acceptance of responsibility or remorse, or anabsence of concern about the impact of his offending on actual orpotential victims.14[14] Counsel acknowledges that all other statutory requirements are met.District Court decision[15] It is unnecessary to traverse the entirety of the District Court decision.The Judge had reports from two psychologists, Ms Sabine Visser andMs Maeva Grzes. Ms Visser provided two reports, the first dated 4 March 2021prepared for Mr McGuinness' sentencing on 23 March 2021 and, the second, dated6 September 2022. Ms Grzes' report was dated 30 November 2021.Both psychologists were cross-examined at the District Court hearing.[16] Below we set out the Judge's discussion and findings on the two issues whichconstitute the grounds of appeal:15Does Mr McGuinness have limited self-regulatory capacity?[41] In her report, Ms Grzes offered the opinion that Mr McGuinness hasa poor self-regulatory capacity that will increase his risk of reoffendingwithout external support and oversight. She said that he could be compulsivein meeting his intimacy needs when feeling lonely and isolated and this isdemonstrated by his offending in New Zealand despite previously beingsanctioned for similar behaviour in Australia. She said in her report"This likely indicates a lack of self-regulation and decision-makingskills, especially in the presence of sexual preoccupation and/oremotional collapse. Additionally, the continuity of his offendingindicates a limited capacity to avoid circumstances in which his urgeis to offend are likely to arise. Moreover, Mr McGuinness has a historyof suicidal ideation attempts, which can demonstrate an inability tocope with stress when difficulties arise. Mr McGuinness haspreviously offended following a reduction in the frequency ofsupervision, suggesting that his self-regulation capacity is likely in partdependent [on] supervision and external support."[42] When asked about Mr McGuinness' capacity to self-regulate,Ms Visser pointed to some situations where she considered Mr McGuinnesshad shown some capacity to self-regulate. She described an incident wherethe defendant had recently had a panic attack and reached out to both her andhis General Practitioner for assistance immediately, which Ms Visser said14 Section 107IAA(1)(d)(i) and (ii).15 Extended Supervision Order, above n 1 (footnotes omitted).indicated change. Ms Visser also pointed to the fact that there does not appearto have been any further offending over the previous 18 months since hisrelease and that he had now secured a job. He had also engaged in ACCcounselling and has had three sessions to date as referred to earlier.[43] While Ms Visser does appear to indicate that there are some signs ofthe beginnings of the ability to self-regulate, her report of 6 September 2022notes that Mr McGuinness has some personality features (borderlinepersonality) which does lead to poor self-regulation. She also notes that thereis an acknowledgment that he needs to engage in treatment to further increasehis capacity for self-regulation.[44] Both Ms Grzes and Ms Visser assessed Mr McGuinness as being atrisk of reoffending if he does not engage in treatment. Ms Grzes puts that riskat above average. Ms Visser, using a different type of risk language, assessesthe risk of reoffending as moderate to high.[45] Accordingly, on the evidence available to me, I conclude thatMr Mc Guinness' self-regulatory capacity is limited.Does Mr McGuinness display a lack of acceptance of responsibility orremorse for past offending or an absence of understanding for, or concernabout, the impact of his sexual offending on actual or potential victims?[46] The experts disagreed on this issue also.[47] Ms Grzes noted in her report that while Mr McGuinness said heaccepted responsibility for his offending, he minimised the offending duringthe assessment process. In evidence Ms Grzes also noted that MrMcGuinness' tendency to repeat the same sentence for each victim and theexpressions of remorse were quite shallow. Ms Grzes felt that Mr McGuinnessat times was more focused on his own predicament than been remorseful forhis victims.[48] Ms Visser considered that Mr McGuinness had acceptedresponsibility for his offending and that he was remorseful for his actions.However, she also accepted in cross-examination that while she consideredthat Mr McGuinness' remorse was genuine, the question remained whetherthere is a risk in the future.[49] I accept the Crown's submission that [it] is appropriate to place weighton the evidence that Mr McGuinness has demonstrated minimisation of theseriousness of his conduct, he has focused on remorse for his ownpredicament, and he has offended following previous attempts at treatment.In those circumstances, while there may be remorse demonstrated in the guiltypleas to his offending, there is in my view a real question over the genuinenessor depth of Mr McGuinness' remorse. Ms Grzes acknowledges thatMr McGuinness has talked about the impact that his offending has had onvictims, acknowledging that his behaviour was wrong and harmful to thevictims. However, she is of the opinion that Mr McGuinness demonstrates alimited and superficial understanding of the impact.[50] Ms Visser, in her second report, indicates that Mr McGuinness hasaccepted that treatment is necessary for both his own trauma of beingvictimised as well as his victimisation of others. Ms Visser offers the opinionthat this indicates that Mr McGuinness accepts that his behaviour does harmto his victims and that he is responsible for creating the harm with hisbehaviour. Ms Visser is of the opinion that Mr McGuinness has demonstratedhe is willing to engage and learn new skills to prevent reoffending.However, Ms Visser does accept that he has had treatment in the past and hasgone on to reoffend.[51] Ms Grzes, in her evidence observes that Mr McGuinness was a victimof sexual abuse himself and considered that was relevant in terms ofconsidering his understanding of the impact his offending had on the[complainant]. She noted that Mr McGuinness had engaged in treatment inAustralia after his first offending and went on to offend again despite havinga safety plan. This shows an absence of understanding for or concern aboutthe impact of his offending on victims despite being a victim of sexual abusehimself.[52] Having assessed all of the evidence, I am satisfied thatMr McGuinness displays an absence of understanding for or concern aboutthe impact of his offending on actual or potential victims.Legal test on appeal against District Court decision[17] Appeals against the imposition of an ESO are treated as an appeal againstsentence and must be made to the Court of Appeal.16 The Court must allow the appealif it is satisfied that for any reason there is an error in the decision and a different ordershould have been made.17[18] This Court does not start afresh nor simply substitute its own opinion for thatof the judge below. Rather, it must be shown that there was an error "whetherintrinsically, or as a result of additional material submitted" on appeal.18 If there is anerror of the requisite character, the Court will then form its own view of the appropriatedecision.19 In assessing whether an alleged error is of the requisite character, it willbe helpful to consider whether the error is material.2016 Parole Act, s 107R.17 Criminal Procedure Act 2011, s 250(2). See Paniora v Chief Executive of the Department ofCorrections [2018] NZCA 607 at [3]; and Chief Executive of the Department of Corrections vColeman [2021] NZCA 528 at [27].18 R v Shipton [2007] 2 NZLR 218 (CA) at [138].19 At [140].20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] referring to Te Aho v R [2013]NZCA 47 at [30].Appellant submissions[19] As to Mr McGuinness' self-regulatory capacity, counsel refers to examplesgiven by Ms Visser where he sought the assistance of others when required, obtainedpaid employment, and engaged with ACC counselling for previous sexualvictimisation. Ms Visser had concluded that Mr McGuinness had "much more insightnow and is definitely working more actively on his recovery and rehabilitation".Counsel submits that Ms Visser's views should have been accepted.[20] As to Mr McGuinness' remorse, counsel submits that assessment of remorse isa largely subjective task and is not easily measured. Ms Grzes acknowledged that shehad met Mr McGuinness only once, and she formed her views based on his responsesduring that meeting.[21] Counsel submits that Mr McGuinness was not offered the opportunity to meetwith a male psychologist with whom he may have formed a better bond. He criticisesMs Grzes reliance or Mr McGuinness' limited vocabulary or inarticulate expressionof remorse as an indication of his lack of remorse or insight into his offending.He submits Ms Visser's view that Mr McGuinness was genuinely remorseful shouldhave been preferred by the Judge. Instead, the Judge wrongly accepted Ms Grzes'description of Mr McGuinness' "limited and superficial understanding of the impact"of his offending.Discussion[22] We are of the view that Mr McGuinness has not demonstrated any error on thepart of the Judge in his assessment of the two issues.[23] The first issue of which the Court must be satisfied is whether the offender has"limited" self-regulatory capacity, not whether he has no such capacity. An offendermay have some self-regulatory capacity which is, nonetheless, "limited". Ms Grzesacknowledged that Mr McGuinness had some self-regulatory capacity. She stated:Although Mr McGuinness does not appear impulsive across a range ofbehaviour and has demonstrated some willingness to abide by his currentCommunity Corrections' conditions, Mr McGuinness could be compulsive inmeeting his intimacy needs when feeling lonely and isolated as demonstratedby his returning to offending despite being previously sanctioned for similarbehaviour. This likely indicates a lack of self-regulation and decision-makingskills, especially in the presence of sexual preoccupation and/or emotionalcollapse.[24] Ms Grzes notes that Mr McGuinness has previously offended following areduction in the frequency of supervision, suggesting that his self-regulation capacityis likely, in part, dependent on supervision and external support.[25] Ms Visser also acknowledges that Mr McGuinness had some personalityfeatures, such as borderline personality disorder, that do lead to poor self-regulation.Mr McGuinness' personal history and offending history also indicates issues withself-regulation. She was of the opinion that Mr McGuinness has in the past used sexas a coping mechanism, which was a maladjusted coping skill. When he was left inisolation without any support in New Zealand, Mr McGuinness fell back to offending.Ms Visser acknowledges that he does need to engage in treatment to further increasehis capacity for self-regulation.[26] In light of the two expert opinions, the Judge did not fall into error in beingsatisfied that Mr McGuinness had limited self-regulatory capacity.[27] The second issue of which the Court must be satisfied is whetherMr McGuinness "displays" a lack of acceptance of responsibility or remorse and/oran absence of understanding for or concern about the impact of his sexual offending.In this regard, it is unclear how and in what way a male psychologist would have madea difference to an assessment of remorse.[28] Ms Grzes did note some remorse and some acceptance of responsibility.She stated:Mr McGuinness agreed with the official information and stated that he acceptsresponsibility for his offending. However, Mr McGuinness minimised theoffending during the current assessment, consistent with what was reported inthe previous private psychological assessment report. File informationindicated mixed opinions on Mr McGuinness being remorseful about hisoffending. Despite what is recorded regarding him expressing remorse,Mr McGuinness then reoffended, suggesting that even if his remorse wasgenuine at the time, it did not deter him from engaging in similar behaviourthereafter. Although Mr McGuinness appeared tearful when discussing theimpact his offending has [had] on one [complainant], his remorse did notappear directed towards the [complainant] and instead he reflected on his ownabuse. Prior to this, he appeared emotionally distant, and this presentationmay have been linked to his difficulty expressing emotions generally. In thewriter's opinion on current evidence, Mr McGuinness has expressed someremorse and accepted some responsibility for his past sexual offending,however, this has not deterred him from further offending.[29] Ms Grzes also stated that Mr McGuinness demonstrated a limited andsuperficial understanding about the impact of his offending on the victims. She saidthat Mr McGuinness appeared to have automatic responses and repeated the samesentences to describe the impact his sexual offending had for each of the victims.[30] On the other hand, Ms Visser states that although one has to acknowledge thathe has in the past struggled with issues of acceptance of responsibility or remorse forhis offending, Mr McGuinness "does not currently minimise the offending nor doeshe avoid taking responsibility".[31] Section 107IAA(1)(d) refers to either or both of a lack of acceptance ofresponsibility or remorse or an absence of understanding for or concern about theimpact of his or her sexual offending on actual or potential victims. The Judge did notmake a specific finding that Mr McGuinness lacked remorse, preferring to determinethat s 107IAA(1)(d) had been satisfied through finding an absence of understandingfor or concern about the impact of his sexual offending on actual or potentialcomplainants. The Judge had been advised that Mr McGuinness contacted a witnessafter his release for his index sexual offending which, according to Ms Grzes, indicatedlittle concern or understanding for the way the witness likely felt, especially in thepresence of a drive to meet his own needs.[32] In making his finding that s 107IAA(1)(d) was satisfied, the Judge made hisown assessment of the evidence, including Mr McGuinness' risk of re-offending.Both psychologists were of the view there was either "an above average" or a"moderate to high" risk of reoffending if Mr McGuinness does not engage intreatment. He has gone on to reoffend notwithstanding treatment in the past, whichindicates a lack of understanding or concern about the impact of his offending.The Judge did not fall into error in being so satisfied.[33] This Court has previously reiterated the need for the imposition of an ESO tobe clearly justified.21 At the time of the imposition of the ESO, Mr McGuinness hadonly attended three ACC counselling sessions, required long term and consistenttreatment for his issues, had no adequate support network or high intensity treatmentprogramme available in the community and had not yet developed a stable andconsistent relationship with either a counsellor or probation officer. The Judgeconsidered that a three-year term was therefore appropriate to enable Mr McGuinnessto engage in targeted treatment. The conditions imposed were also the minimumrequired. They do not require electronic monitoring. Access to the internet is also tobe supervised and not banned. In conclusion, we agree with the Judge that a three-yearESO with the least restrictive conditions will enable Mr McGuinness time to developa lifestyle, habits, and avoidance of risk skills in the community that will significantlymitigate his risk of reoffending.Result[34] The appeal against the imposition of the extended supervision order isdismissed.Solicitors:Crown Solicitor, Manukau for Respondent21 R (CA 586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53].